83R2299 YDB-D
By: Howard H.B. No. 3811
A BILL TO BE ENTITLED
AN ACT
relating to the planning and contracting process for certain state
agencies and state property; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 443.007, Government Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) If the board updates or modifies its long-range master
plan for the preservation, maintenance, restoration, and
modification of the Capitol and the Capitol grounds, the board must
conform its plan to the Capitol Complex master plan prepared by the
Texas Facilities Commission under Section 2166.105.
SECTION 2. Section 443.023, Government Code, is amended to
read as follows:
Sec. 443.023. PURCHASE AND LEASE REQUIREMENTS FOR CERTAIN
EXPENDITURES. Subtitle D, Title 10, does not apply to a purchase or
lease under this chapter except that the board must comply with
Section 443.007(a-1) and to the extent applicable any provision in
Chapter 2165 or 2166 specifically related to the Capitol Complex.
The executive director, as appropriate, may approve in writing the
purchase or lease of goods and services needed to repair or improve
an area within the Capitol, Capitol extension, Capitol grounds, or
General Land Office building, if the cost of the purchase or lease
will not exceed $50,000. The executive director shall notify the
board in writing of any expenditures in excess of $50,000 made under
this chapter.
SECTION 3. Subchapter B, Chapter 2165, Government Code, is
amended by adding Sections 2165.059, 2165.060, 2165.061, 2165.062,
2165.063, and 2165.064 to read as follows:
Sec. 2165.059. ADOPTION OF COMMISSION CONTRACTING
POLICIES. (a) The commission shall adopt in a public meeting a
detailed policy on selecting project delivery methods and on
issuing job order contracts authorized under Subchapter I, Chapter
2267, as added by Chapter 1129 (H.B. 628), Acts of the 82nd
Legislature, Regular Session, 2011. The policy must:
(1) specify by contract type the circumstances in
which one delivery method is more appropriate than an alternative
delivery method;
(2) require commission staff to include in reports to
the commission justifications for the recommended delivery method;
(3) require commission approval of job order contracts
in amounts that exceed $25,000; and
(4) require commission staff to report to the
commission specific reasons why a contract needed on an expedited
basis requires the use of a job order contract.
(b) The commission shall adopt a policy to restrict the use
of interagency contracts for procurements in amounts less than
$100,000 except in an emergency. Commission staff shall provide
justification to the commission on the specific reasons a contract
constitutes an emergency. The commission must approve any
interagency contract in an amount of $100,000 or more.
(c) The commission shall develop general guidelines on
consolidating two or more contracts for goods or services into one
contract, including criteria on the appropriate scope of the
contract and minimum and maximum amounts for the contract.
Sec. 2165.060. INSURANCE REVIEW PROCESS. (a) The
commission shall develop a centralized insurance review process to
be performed by commission staff qualified to review insurance
policies and coverage.
(b) Contract administrators in each commission program area
shall assist the commission in determining insurance requirements
for the program area and in continually monitoring whether the
requirements are met.
Sec. 2165.061. PROCEDURES FOR SOLICITING AND AWARDING
CERTAIN CONTRACTS; NEGOTIATION PLAN. (a) The commission shall
perform a risk and needs assessment for each contract, record the
assessment results, and retain a copy of the assessment in its
central contract file maintained under Section 2165.064. The
commission shall develop a template to record the assessment
information in the central contract files.
(b) The commission staff for each contract submitted for
review to the Contract Advisory Team established under Subchapter
C, Chapter 2262, shall:
(1) record any contract recommendations made by the
team;
(2) indicate which recommendations were implemented;
(3) explain in writing the reasons any recommendation
was not implemented; and
(4) retain a copy of the information required under
Subdivisions (1)-(3) in the commission's central contract file
maintained under Section 2165.064.
(c) Commission staff must develop a written negotiation
plan before each contract negotiation and document the outcome of
the negotiation. The staff shall use the negotiation information
to:
(1) evaluate the outcome of the negotiation compared
to the original negotiation plan;
(2) determine whether negotiation goals were met; and
(3) analyze possible reasons any negotiation goal was
not met.
(d) The evaluation required under Subsection (c) may not
reveal specific details about the commission's negotiation
strategy.
Sec. 2165.062. TRAINING. The commission shall develop a
written policy requiring all commission contract administrators,
procurement staff, and legal staff who deal with contracts to
receive contract training, including:
(1) general training on procurement and the legal
requirements for a contract; and
(2) contract administration training specifically
tailored to each commission program area with responsibility for
contracts.
Sec. 2165.063. CONTRACTING POLICY AND REQUIREMENTS. (a)
The commission shall develop for each contract an administration
plan that tailors the details of the plan to commission needs and
accounts for the complexity and risk of the contract. The plan must
identify risk areas and include monitoring plans, communication
plans, and other elements necessary to administer the contract. The
commission may develop a template for an administrative plan for
each commission program area.
(b) Each commission program area shall timely update and
document its contract monitoring processes. The documentation must
include the contract monitoring plans and any correspondence
related to contract sanctions. The commission shall retain the
documentation in its central contract file.
(c) The commission shall develop criteria for determining
whether to use building commissioning for each commission or client
state agency project. The criteria must include risk-based analysis
that considers the size and complexity of the project. In
developing the criteria, the commission may consult with and use
resources from organizations with expertise in verifying that
building construction requirements have been met.
(d) The commission shall establish procedures for
commission staff in each commission program area to assess
contractor and commission performance at contract closeout,
including an evaluation of what could be learned from the contract
experience, and for each major contract the staff shall provide the
assessment information to the commission. The commission shall use
the assessment information to improve its contract management and
to improve the use of contractor performance information in future
procurements.
(e) The commission's facilities design and construction
division shall:
(1) perform a comprehensive evaluation of change
orders and amendments to its completed and active construction
project contracts, including an evaluation of any time extensions
and unforeseen circumstances;
(2) explain significant contract changes, including
changes outside the commission's control; and
(3) report a summary of any significant contract
changes to the commission.
Sec. 2165.064. CENTRAL CONTRACT FILE. The commission shall
develop a central master file for contracts, including the
commission's facilities design and construction division
contracts, that contains documentation of the contracting process
from initial planning to final closeout and assessment of the
contract. Commission staff may consult with the comptroller on the
assessment information to be included in the file.
SECTION 4. Subchapter C, Chapter 2165, Government Code, is
amended by adding Section 2165.1031 to read as follows:
Sec. 2165.1031. CHILD CARE FACILITY CONTRACTS. The
commission shall include in each contract to provide a child care
facility in a state building:
(1) a contract monitoring plan that:
(A) specifies the frequency of any commission
inspections and reporting requirements; and
(B) includes review of state inspection reports
and accreditation requirements; and
(2) a range of sanctions that includes a corrective
action plan.
SECTION 5. Chapter 2165, Government Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. PUBLIC AND PRIVATE FACILITIES AND INFRASTRUCTURE:
QUALIFYING PROJECTS
Sec. 2165.351. DEFINITIONS. In this subchapter:
(1) "Partnership Advisory Commission" means the
Partnership Advisory Commission created by Chapter 2268.
(2) "Qualifying project" has the meaning assigned by
Section 2267.001, as added by Chapter 1334 (S.B. 1048), Acts of the
82nd Legislature, Regular Session, 2011.
Sec. 2165.352. COMMISSION REVIEW GUIDELINES AND POLICIES.
(a) In adopting the qualifying project review guidelines required
by Section 2267.052, as added by Chapter 1334 (S.B. 1048), Acts of
the 82nd Legislature, Regular Session, 2011, the commission must
include review criteria and documentation to guide the initial
review of each substantially complete qualifying project proposal
received by the commission.
(b) The review criteria required under Subsection (a) at a
minimum must include:
(1) the extent to which the qualifying project meets a
public need;
(2) the extent to which the project meets the
objectives and priorities of the commission, including compliance
with any applicable commission plans, including the Capitol Complex
master plan developed under Section 2166.105;
(3) the technical and legal feasibility of the
project;
(4) the adequacy of the qualifications, experience,
and financial capacity of the person submitting the proposal;
(5) any potentially unacceptable risks to this state;
and
(6) whether an alternative delivery method is
available or practical.
(c) The commission's qualifying project review guidelines
must specify:
(1) the types of professional expertise, including
financial, real estate, and legal, needed to effectively protect
this state's interest when considering and implementing a
qualifying project; and
(2) the range of professional expertise needed at each
stage of the project to evaluate the qualifying project proposal,
assess and allocate risk, negotiate a contract, and oversee the
contract performance over the term of the contract.
(d) The expertise described by Subsection (c) may be
provided by commission staff or outside experts.
(e) The commission shall develop a policy to ensure that
commission staff apply all applicable contracting best practices to
qualifying project contracts, including procedures and
documentation related to planning, risk assessment, performance
measures, and ongoing contract oversight.
Sec. 2165.353. QUALIFYING PROJECT FEES. (a) The commission
shall develop and adopt a qualifying project proposal fee schedule
sufficient to cover the costs of processing, reviewing, and
evaluating the proposals.
(b) The commission shall use the professional expertise
information required under Section 2165.352(c) to determine the
amount of the fee charged by the commission to review a qualifying
project proposal. The amount must be reasonable in comparison to
the level of professional expertise required for the project and
may include the cost of staff time required to process the proposal
and other direct costs.
(c) The commission may charge additional fees to cover the
commission's costs of negotiating, implementing, and overseeing an
executed qualifying project contract throughout the duration of the
contract, including fees generated from the project's revenue.
Sec. 2165.354. INITIAL REVIEW OF QUALIFYING PROJECT
PROPOSAL. (a) The commission staff shall conduct an initial review
of each qualifying project proposal submitted to the commission and
provide to commission members a summary of the review, including an
analysis and recommendations.
(b) The commission shall use a value for money analysis in
evaluating each qualifying project proposal to:
(1) ensure the commission determines the best approach
for developing state property;
(2) conduct a thorough risk analysis of the proposal
that:
(A) evaluates the financial and qualitative
benefits of the proposal; and
(B) identifies specific risks shared between
this state and the private partner and subjects the risks to
negotiation in the contract;
(3) determine if the proposal is in the best long-term
financial interest of this state;
(4) determine if the project will provide a tangible
public benefit; and
(5) address the opportunity costs of alternative uses
of the state property.
(c) The commission shall coordinate with the commission's
office of internal audit for review and receipt of comments on the
reasonableness of the assumptions used in the value for money
analysis required under Subsection (b).
Sec. 2165.355. INITIAL PUBLIC HEARING ON QUALIFYING PROJECT
PROPOSAL. (a) Before submitting a detailed qualifying project
proposal to the Partnership Advisory Commission as required under
Section 2268.058, the commission must hold an initial public
hearing on the proposal.
(b) The commission must post a copy of the detailed
qualifying project proposal on the commission's Internet website
before the required public hearing and, before posting the
proposal, redact all confidential information included in the
proposal.
(c) After the hearing, the commission shall:
(1) modify the proposal as the commission determines
appropriate based on the public comments; and
(2) include the public comments in the documents
submitted to the Partnership Advisory Commission and provide any
additional information necessary for the evaluation required under
Chapter 2268.
Sec. 2165.356. SUBMISSION OF QUALIFYING PROJECT CONTRACT TO
CONTRACT ADVISORY TEAM. (a) Not later than the 60th day before the
date the commission is scheduled to vote on approval of a qualifying
project contract, the commission must submit to the Contract
Advisory Team established under Subchapter C, Chapter 2262, a copy
of:
(1) the final draft of the contract;
(2) the detailed qualifying project proposal; and
(3) any executed interim or other agreement.
(b) The Contract Advisory Team shall review the
documentation submitted under Subsection (a) and provide written
comments and recommendations to the commission. The review must
focus on best practices for contract management and
administration.
(c) The commission shall provide to the Partnership
Advisory Commission:
(1) a copy of the Contract Advisory Team's written
comments and recommendations; and
(2) the commission's response to the comments and
recommendations.
Sec. 2165.357. SUBMISSION OF FINANCIAL INFORMATION AND
ANALYSIS TO LEGISLATIVE BUDGET BOARD. (a) The commission on a
regular basis shall provide to the Legislative Budget Board:
(1) information on potential and actual revenue
generated from qualifying projects; and
(2) a financial analysis, forecast, and other related
information obtained from the evaluation and implementation of
qualifying projects.
(b) The Legislative Budget Board shall monitor this state's
financial interest in qualifying projects of the commission and
make recommendations to the commission on the use and management of
revenue generated from qualifying projects.
Sec. 2165.358. PROHIBITED EMPLOYMENT OF COMMISSION
EMPLOYEE. (a) A commission employee may not be employed by any
other person to perform duties that relate to the employee's duties
on a qualifying project.
(b) The commission shall obtain from each commission
employee who is also employed by another person sufficient
information to determine whether a potential conflict of interest
exists between the employee's commission duties and the employee's
duties with the other employer.
(c) Each commission employee whose commission duties relate
to a qualifying project shall attest that the employee is aware of
and agrees to the commission's ethics and conflict-of-interest
policies.
(d) To the extent the employment is authorized by commission
policy, this section does not prohibit additional employment for a
commission employee whose commission duties are not related to a
qualifying project.
SECTION 6. Section 2166.001, Government Code, is amended by
amending Subdivisions (1) and (1-a) and adding Subdivision (1-b) to
read as follows:
(1) "Capitol Complex" has the meaning prescribed by
Section 411.061(a)(1).
(1-a) "Commission" means the Texas Facilities
Commission.
(1-b) [(1-a)] "Construction" includes acquisition and
reconstruction.
SECTION 7. Subchapter C, Chapter 2166, Government Code, is
amended by adding Sections 2166.105, 2166.106, and 2166.107 to read
as follows:
Sec. 2166.105. CAPITOL COMPLEX MASTER PLAN. (a) The
commission shall prepare a Capitol Complex master plan to:
(1) provide a clear long-range vision for the Capitol
Complex by outlining the strategy and goals for developing the
Capitol Complex;
(2) recommend actions for meeting the strategies and
goals;
(3) guide decision making on future development and
improvements in the Capitol Complex; and
(4) provide the commission a basis for evaluating
proposals affecting the Capitol Complex.
(b) The Capitol Complex master plan must include:
(1) an overview and summary of the commission's
previous plans for the Capitol Complex;
(2) a stated strategic vision and long-term goals for
the Capitol Complex;
(3) an analysis of state property, including
buildings, in the Capitol Complex and of the extent to which this
state satisfies its space needs through use of the property;
(4) in consultation with the General Land Office, an
analysis of real estate market conditions in the Austin area;
(5) detailed, site-specific proposals for developing
state property in the Capitol Complex, including proposals on the
use of property and space for public or private sector purposes;
(6) an analysis of and recommendations for building
design guidelines to ensure appropriate quality in new or remodeled
buildings in the Capitol Complex;
(7) an analysis of and recommendations for Capitol
Complex infrastructure needs, including transportation, utilities,
and parking;
(8) for projects identified in the plan, an analysis
of and recommendations for financing options, including private
sector participation;
(9) schedules for implementing the plan components and
any projects identified in the plan;
(10) consideration of alternative options for meeting
state space needs outside the Capitol Complex; and
(11) other information relevant to the Capitol Complex
as the commission determines appropriate.
(c) The commission shall discuss a proposed Capitol Complex
master plan and any proposed updates to the plan at a public meeting
before the plan or update is officially adopted by the commission.
(d) Not later than July 1 of each even-numbered year, the
commission shall submit updates to the Capitol Complex master plan
to the governor, lieutenant governor, speaker of the house of
representatives, comptroller, and Legislative Budget Board.
(e) The commission may perform additional studies necessary
to implement components of or projects identified in the Capitol
Complex master plan.
(f) The commission shall ensure that the Capitol Complex
master plan and the master facilities plan developed under Section
2166.102 do not conflict and together comprehensively address the
space needs of state agencies in Travis County.
Sec. 2166.106. REVIEW OF PROPOSED CAPITOL COMPLEX MASTER
PLAN BY STATE PRESERVATION BOARD AND GENERAL LAND OFFICE. (a) Not
later than the 90th day before the date the commission holds a
public meeting to discuss a proposed Capitol Complex master plan,
the commission must submit the proposed plan to the State
Preservation Board and the General Land Office for review and
comment.
(a-1) Not later than the 90th day after the date the State
Preservation Board receives a proposed Capitol Complex master plan
from the commission, the board:
(1) by a public vote may disapprove the plan if the
board determines that the goals or recommendations in the plan are
not in the best interest of the state or of the Capitol Complex; and
(2) if the board disapproves the plan, shall submit to
the commission written comments and recommended modifications to
the plan.
(a-2) The proposed Capitol Complex master plan is
considered to be approved by the State Preservation Board if the
board does not hold the public vote required under Subsection (a-1)
on or before the 90th day after the date the proposed plan is
received by the board.
(a-3) This subsection and Subsections (a-1) and (a-2)
expire September 1, 2015.
(b) The commission shall:
(1) consider any written comments or recommendations
on the proposed Capitol Complex master plan submitted by the State
Preservation Board or the General Land Office; and
(2) modify the plan as the commission determines
necessary to address the comments and recommendations.
(c) Not later than the 60th day before the date the
commission holds a public meeting to discuss a proposed update to
the Capitol Complex master plan, the commission must submit the
proposed update to the State Preservation Board and the General
Land Office for review and comment.
(d) In preparing the final draft of a proposed update to the
Capitol Complex master plan, the commission shall consider any
written comments or recommendations submitted to the commission by
the State Preservation Board or the General Land Office.
Sec. 2166.107. COMPREHENSIVE PLANNING AND DEVELOPMENT
PROCESS. (a) The commission by rule shall adopt a comprehensive
process for planning and developing state property in the
commission's inventory, including property in the Capitol Complex,
and for assisting state agencies in space development planning for
state property.
(b) The process under this section must promote
constructive participation by the public, interested parties, and
other state agencies to provide the critical perspectives necessary
to balance competing needs.
(c) The process under this section at a minimum must
include:
(1) a clear approach and specific schedules for
obtaining input throughout the planning and development process
from the public, interested parties, and state agencies, including
the General Land Office and, for Capitol Complex property, the
State Preservation Board and the Texas Historical Commission;
(2) specific schedules for providing to the commission
regular updates on planning and development efforts;
(3) a public involvement policy to ensure that before
the commission makes a decision on the use or development of state
property the public and interested parties have the opportunity to
review and comment on the commission's plans; and
(4) confidentiality policies consistent with Chapter
552.
SECTION 8. Subchapter D, Chapter 2166, Government Code, is
amended by adding Section 2166.158 to read as follows:
Sec. 2166.158. AUSTIN PROJECT. Not later than the 30th day
before the date the commission is scheduled to meet and vote on a
project to develop or improve state property in the city of Austin,
the commission staff must:
(1) place the project on the commission's meeting
agenda to provide the public with notice of the meeting and an
opportunity to comment; and
(2) present sufficient information to commission
members to enable the members to adequately prepare for the meeting
and to address the members' questions and concerns.
SECTION 9. Subchapter B, Chapter 2268, Government Code, is
amended by adding Section 2268.0581 to read as follows:
Sec. 2268.0581. SUBMISSION OF REPORT TO TEXAS FACILITIES
COMMISSION. (a) The commission shall submit to the Texas
Facilities Commission a written report of the commission's
evaluation of any detailed proposal of a Texas Facilities
Commission qualifying project that the commission accepts for
review under Section 2268.058.
(b) The report required under Subsection (a) must include
the commission's findings and recommendations and specify the
schedules, procedures, and documentation recommended by the
commission for the proposed qualifying project.
(c) The Texas Facilities Commission shall:
(1) post on the Texas Facilities Commission's Internet
website the commission's review report for the detailed proposal;
and
(2) before posting the documents required under
Subdivision (1), redact all confidential information contained in
the documents.
SECTION 10. Section 31.1571(a), Natural Resources Code, is
amended to read as follows:
(a) At any time, the commissioner may make a report to the
governor recommending real estate transactions or other actions
involving any real property included in the most recent evaluation
report and identified as not used or substantially underused. The
report must conform to the real property provisions in the Capitol
Complex master plan developed by the Texas Facilities Commission
under Section 2166.105, Government Code.
SECTION 11. (a) The Texas Facilities Commission shall:
(1) not later than January 1, 2014:
(A) adopt the contract policies required by
Section 2165.059, Government Code, as added by this Act;
(B) develop the insurance review process
required by Section 2165.060, Government Code, as added by this
Act;
(C) develop the risk assessment template and
negotiation plan required by Section 2165.061, Government Code, as
added by this Act;
(D) develop the training required by Section
2165.062, Government Code, as added by this Act;
(E) develop the contracting policy and
requirements required by Section 2165.063, Government Code, as
added by this Act;
(F) develop the central contract file required by
Section 2165.064, Government Code, as added by this Act;
(G) develop the qualifying project review
guidelines required by Section 2165.352, Government Code, as added
by this Act;
(H) develop the qualifying project proposal fee
schedule required by Section 2165.353, Government Code, as added by
this Act; and
(I) adopt the comprehensive planning and
development process required by Section 2166.107, Government Code,
as added by this Act; and
(2) not later than July 1, 2014:
(A) prepare the Capitol Complex master plan
required by Section 2166.105, Government Code, as added by this
Act; and
(B) submit the plan as required by that section.
(b) Notwithstanding Chapter 2267, Government Code, as added
by Chapter 1334 (S.B. 1048), Acts of the 82nd Legislature, Regular
Session, 2011, the Texas Facilities Commission may not take any
formal action on a qualifying project under that chapter before:
(1) September 1, 2013; or
(2) if the project is within the Capitol Complex, as
that term is defined by Section 2166.001, Government Code, as
amended by this Act, the commission develops the Capitol Complex
master plan required by Section 2166.105, Government Code, as added
by this Act.
SECTION 12. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2013.